Since 2016, Epstein Becker Green (EBG) attorneys have researched, compiled, and analyzed state-specific content relating to the regulatory requirements for professional mental/behavioral health practitioners and stakeholders seeking to provide telehealth-focused services.
We are pleased to once again release our latest update to EBG’s Telemental Health Laws app, an extensive compilation of laws, policies, and other state guidance for practitioners supporting the mental/behavioral health practice disciplines.
Continued Efforts to Strike a Perfect Balance
Even though the pandemic-induced spike in legal and regulatory changes in the telemental health space has somewhat subsided, states and professional licensing boards have continued to modify their existing laws, regulations, and guidance in efforts to strike the perfect balance between allowing flexibilities for telehealth providers and ensuring a high quality of care. These continued changes make clear that laws and regulations have yet to settle into a new normal in a post-public health emergency (PHE) world.
Although the PHE officially ended in May 2023, the passage in December 2022 of the Consolidated Appropriations Act, 2023, extended many federal telehealth flexibilities until December 31, 2024, providing certain assurances with respect to coverage parameters for furnishing telehealth services to Medicare beneficiaries (including a continued delay of the initial and periodic in-person visit requirements for telemental health services). As of the time of publication, Congress continues to evaluate options to further extend certain Medicare telehealth flexibilities temporarily as part of the anticipated year-end legislative package.
The Wait for DEA Rulemaking Continues
In 2024, telehealth providers have continued to benefit from an extension of the waiver by the U.S. Drug Enforcement Administration (DEA) regarding the remote prescribing of controlled substances. Since most state laws and regulations defer to federal law requirements (namely, the federal Controlled Substances Act) for the remote prescribing of controlled substances, providers have continued to enjoy this leftover flexibility the DEA temporarily extended beyond the PHE era. While a final rule sent to the White House Office of Management and Budget (OMB) for review in October 2024 suggests that the DEA intends to issue another extension, without such an extension, telehealth providers would no longer be able to rely upon these remote prescribing flexibilities beyond December 31, 2024—the current expiration date.
In addition to monitoring short-term extensions for insight into implications on telehealth practices in the near future, stakeholders continue to follow the DEA’s ongoing rulemaking efforts to permanently codify certain remote prescribing changes into federal regulations. The DEA previously attempted remote prescribing rulemaking in March 2023. After receiving more than 38,000 comments in response to their proposed rule, the DEA went back to the drawing board. In June 2024, the DEA sent an updated proposed rule addressing remote prescribing to OMB for review. As of the time of publication, OMB’s review remains ongoing. However, even if issued, a new presidential administration may seek to make new changes to the DEA’s forthcoming proposal, which could further delay the codification of permanent remote prescribing policies by the DEA.
Continued Recognition of the Benefits of Telehealth
During the 118th Congress, federal legislators from both parties and across both chambers of Congress introduced over 60 bills addressing various temporary and long-term federal-level legislative proposals related to telehealth. However, the continued development of telehealth-related laws, regulations, and guidance at the state level highlights that states and professional boards similarly understand and appreciate the pivotal role telehealth plays in the industry. States and professional boards appear committed to ensuring the availability of telehealth as a method of receiving care.
More Focus on Telefraud and Enforcement
As was the case in previous years, the U.S. Department of Justice (DOJ) and the U.S. Department of Health and Human Services Office of Inspector General (OIG) have continued their efforts in 2024 to identify and prosecute “telefraud” schemes. In June 2024, the DOJ announced the agency’s latest takedown, which resulted in criminal charges against 193 defendants for alleged participation in health care fraud and opioid abuse schemes, resulting in more than $2.75 billion in intended losses and $1.6 billion in actual losses. The DOJ confirmed that, as part of the June 2024 takedown, charges against 36 of the defendants were filed in connection with the submission of more than $1.1 billion in fraudulent claims resulting from telemedicine-related schemes. The DOJ also noted that five defendants were charged in conjunction with a scheme involving the remote prescribing of stimulants such as Adderall by providers who failed to establish the proper practitioner-patient relationship with the patients for whom the medications were prescribed.
The latest takedown shows that the OIG’s focus on telehealth continues. As of November 2024, current open items in the OIG Work Plan include ongoing work on audits related to the use of telehealth for the provision of opioid use disorder treatment services, as well as examination of claims and other data related to the general use of telehealth services by Medicare Part B beneficiaries and telehealth-related expansion efforts by state Medicaid programs during the PHE.
These ongoing enforcement actions and program integrity activities at the federal level have put telehealth providers on notice of the need to track and ensure compliance with the applicable legal requirements related to providing telehealth services from both a policy and operations perspective. Telehealth providers should continue to prioritize the development and integration of robust operational compliance infrastructures. We anticipate continued efforts at both the federal and state levels with respect to enforcement and likely coordination between federal and state regulators on these issues.
General Telemental/Telebehavioral Provisions Across the States
EBG’s Telemental Health Laws app is a useful tracking tool for providers to help understand state-by-state changes and developments. Though no two states approach the regulation of telehealth in the same manner, we have discerned some trends among the states in 2024.
While laws and regulations governing the provision of telehealth services by physicians are more established than those governing other provider types, one trend we have noticed is continued efforts to develop sets of requirements that must be met in order for other types of providers to establish valid practitioner-patient relationships. For example, in 2024, Kentucky passed S.B. 255, which sets standards for social workers establishing practitioner-client relationships via telehealth.
Across many of the health professions, interstate compacts have persisted as the most meaningful approach by states to address challenges associated with professional cross-state practice. While states generally require physicians and other health care professionals to hold valid licenses to practice that have been issued by the state’s relevant professional boards, interstate compacts have allowed specific types of professionals to engage in cross-state practice as long as they hold a license in good standing in their home state. For more information about the ongoing efforts by states to join professional licensure compacts, see the 50-State Professional Licensure Compacts Summary page located within our complimentary Telemental Health Laws app.
In 2024, states have continued to create new exceptions to their professional licensure requirements for specific types of professionals, as well as for specific circumstances where cross-state practice may help to support preexisting relationships between professionals and their existing patients. This is a long-standing challenge and regulatory consideration for professionals in the mental/behavioral health space to better support their patients who travel and spend time outside their home states for school and other temporary travel reasons. Here are some examples:
- Colorado passed a bill, effective January 1, 2026, that will allow for out-of-state health care providers to render services in Colorado if registered with the applicable regulatory authority in Colorado.
- South Carolina now permits out-of-state physicians to provide care to patients located in South Carolina via telehealth if the out-of-state physician established an in-person physician-patient relationship with the patient in another state for specialty care and treatment is ongoing by that out-of-state provider and the telehealth services provided are pursuant to an existing treatment plan and occur between in-person visits.
- The Vermont Office of Professional Regulation is in the process of promulgating rules to implement a telehealth registration and telehealth licensure process. The telehealth registration will be available to out-of-state health care providers and will authorize such providers to render services via telehealth to a total of not more than 10 unique patients or clients located in Vermont for a period of not more than 120 consecutive days from the date the registration is issued. The telehealth license will be available to out-of-state health care providers and will authorize such providers to render services via telehealth to a total of not more than 20 unique patients or clients located in Vermont during the two-year license term.
Also of note: effective July 1, 2024, Indiana no longer requires that Indiana-licensed health care providers who are located out-of-state obtain a separate telehealth certification in order to render telehealth services to patients or clients located in Indiana. The removal of this administrative barrier is yet another example of continued efforts by states to streamline access to health care services for their residents.
After an uptick in parity-related legislation and telehealth-related developments in Medicaid reimbursement policies during the PHE, we noticed fewer such updates in 2024, perhaps signaling that states are comfortable with the policies currently in place for the time being.
Conclusions
As the dust continues to settle from the PHE, telehealth providers are now bracing themselves for the changes soon to come as the PHE-era flexibilities expire. Telehealth providers will invariably face certain legal and regulatory complexities as lawmakers and regulators on both the state and federal levels consider adopting further temporary or permanent policy changes impacting telehealth. Federal-level changes—and particularly the DEA’s remote prescribing rulemaking—may further compound these complexities and trigger a wave of changes in laws, regulations, and policies at the state and board levels. Telehealth providers should continue to monitor these developments and capitalize on current and upcoming telehealth opportunities while simultaneously making investments in compliance infrastructures in order to operate in accordance with applicable federal and state laws, regulations, and policies.
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